RAJESH KUMAR Vs. DELHI URBAN SHELTER IMPROVEMENT BOARD

JUDGEMENT

(1.) By the instant petition filed under Article 226 of the Constitution of India, the petitioners, seek the following reliefs:

(2.) The petitioners - who joined DUSIB as security guards (Group 'D'), in effect, seek to be declared eligible to the post of LDC, and, thereby, being considered for promotion to the post of LDC on regular / Adhoc basis inter alia through departmental examination. They had earlier approached this court by way of WP(C) No.3712/17 Rajesh Kumar and Others vs. Delhi Urban Shelter Improvement Board & Ors. It was dismissed as withdrawn with the liberty to approach the respondents by way of a representation. The representation so made has come to be declined vide communication dated 22.06.2017. By the instant petition, the petitioners, now extend challenge to decision communicated vide said letter dated 22.06.2017. The petitioners assert that all Group 'D' posts have been re-designated as MTS and now fall in Group 'C' category and the petitioners are required to be treated as the feeder cadre for the purposes of promotion to the post of LDC. In support of such assertion, the petitioners advert to the communication dated 26.03.2013 issued by DUSIB requesting the DDOs and Assistant Director to furnish details of all Group 'D' officials, who had passed 12th grade from recognized boards and their qualifications added in their personal files/service books. According to the petitioners, it was thereafter only, the respondents issued the circular for holding departmental examination for promotion to the post of LDC. Thus, according to them, they were treated eligible and even allowed to appear for the examination scheduled for 14.06.2014, though, it came to be cancelled later. Thereafter, the petitioners made a representation on 23.02.2015 followed by a reminder dated 07.07.2015 inter alia pointing out that the petitioner No.1 - Rajesh Kumar had even served as LDC for the last two years and therefore, he should get a fair chance for promotion to the post of LDC. The petitioners allege that while their such representation remained pending consideration, vide communication dated 20.07.2016, the respondents called for the work performance reports of the similarly placed persons and in doing so, the respondents had considered all categories of posts like peon, daftari, baildar, process server but for the security guards i.e. the petitioners. Such action, according the petitioners, was discriminatory and violative of their fundamental rights of equality. They allege that there was no promotional hierarchy nor were there any notified recruitment rules for promotion for the security guards and they were stagnating on the post for years. In support of such plea, reliance is placed on State of Bengal vs. Rabindra Nath Sengupta, 1998 2 SLR 535; Marine Products Export Development Authority vs. A.Geetha, 1997 6 SLR 331; and, Union of India vs.Anil Kumar, 1999 4 SLR 298.

(3.) The respondents resist the claim made in the petition on the premise that DUSIB has adopted the recruitment regulations of DDA with the approval of the competent authority of the DUSIB and the recruitment regulations so applicable provide that the group 'D' employees - upgraded to Group 'C' as per the 6th Central Pay Commission Report - having defined hierarchy in their own cadre like malies, security guards etc. are not entitled to promotion as LDC. It is also their plea that in the absence of any challenge to the vires of the applicable recruitment regulations, the petitioners cannot be considered for promotion to the post of LDC inasmuch as the security guards in DUSIB have their defined hierarchy and their next promotional post is of Head Security Guard, whereas, the baildars, safai karamchari and process servers have no promotional post in their cadre. For any of the petitioners having been invited to participate in the departmental examination held in May, 2014, according to the respondents, it ipso facto does not vest any legal right in their favour for being eligible for appointment to the post sought for. Similarly, according to the respondents, if, the petitioners or any one of them, were asked to perform some duty of the LDC by the branch heads, it does not bind the appointing authority to consider them to the said post. It is thus the plea of the respondents that there was a distinction between an eligibility condition and a right to claim appointment and an ineligible person cannot claim a right to be appointed to a post lying vacant only on the premise that he or she has the requisite qualifications to be appointed to the post. In support of such contentions, reliance is placed upon Shankarsan Dash vs. Union of India,1993 3 SCC 47 and the decision of this court in LPA No.612/2011 Vikas Gachli vs. Competition Commission of India.